Trinity Western University et al. v. Nova Scotia Barristers' Society, 2015 NSSC 25

• Judge: Campbell, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 28, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 25;(2015), 355 N.S.R.(2d) 124 (SC)

Trinity Western Univ. v. Barristers Soc. (2015), 355 N.S.R.(2d) 124 (SC);

    1123 A.P.R. 124

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.051

Trinity Western University and Brayden Volkenant (applicants) v. Nova Scotia Barristers' Society (respondent) and Justice Centre for Constitutional Freedoms, The Association for Reformed Political Action, The Evangelical Fellowship of Canada and Christian Higher Education Canada, The Attorney General of Canada, The Catholic Civil Rights League and Faith and Freedom Alliance, The Christian Legal Fellowship, The Canadian Council of Christian Churches and The Nova Scotia Human Rights Commission (intervenors)

(Hfx. No. 427840; 2015 NSSC 25)

Indexed As: Trinity Western University et al. v. Nova Scotia Barristers' Society

Nova Scotia Supreme Court

Campbell, J.

January 28, 2015.

Summary:

Trinity Western University (TWU) was a private Christian university in British Columbia with a proposed law school. All students were required to sign the TWU Community Covenant promising to adhere to a code of conduct in line with evangelical teachings, including a promise not to engage in sexual intimacy outside the traditionally defined marriage of a man and a woman. TWU received no government funding, was not subject to the Canadian Charter of Rights and Freedoms, and had never been found to have infringed rights under the British Columbia human rights legislation. The Nova Scotia Barristers' Society (NSBS) passed a resolution to not recognize proposed TWU law degrees unless TWU changed its policy by excluding law students from the Community Covenant, which the NSBS saw as discriminatory. The NSBS decision not to approve "the proposed law school", even though the proposed TWU law degree was approved by the national Federation of Law Societies, was contrary to the Regulations under the Legal Professions Act existing at that time. Accordingly, the Regulations were amended to permit the NSBS to not recognize a "law degree" recognized by the Federation where NSBS determined, in the public interest, that the university discriminated against law students contrary to the Charter or the Nova Scotia Human Rights Act. TWU applied for judicial review.

The Nova Scotia Supreme Court, applying the reasonableness standard of review, allowed the application. The NSBS had no authority under the Legal Professions Act to regulate university or law school policies. The Act gave the NSBS jurisdiction to deal with the educational and other qualifications of persons who applied to practice law in Nova Scotia (i.e., regulating the competence of Nova Scotia lawyers). The Community Covenant, however morally reprehensible to some, was irrelevant to whether a TWU law graduate met the qualifications to practice law in Nova Scotia. Alternatively, if the NSBS had the authority to not recognize TWU law degrees because of the Community Covenant, the decision would be set aside because "it did not exercise [that authority] in a way that reasonably considered the concerns for religious freedom and liberty of conscience".

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Barristers and Solicitors - Topic 492 ].

Barristers and Solicitors - Topic 345

Admission to practice or as student-at-law - Qualifications - Canadian law degrees - Trinity Western University (TWU) was a private Christian university in British Columbia with a proposed law school - All students were required to sign the TWU Community Covenant promising to adhere to a code of conduct in line with evangelical teachings, including a promise not to engage in sexual intimacy outside the traditionally defined marriage of a man and a woman - TWU received no government funding, was not subject to the Canadian Charter of Rights and Freedoms, and had never been found to have infringed rights under the British Columbia human rights legislation - The Nova Scotia Barristers' Society (NSBS) passed a resolution to not recognize proposed TWU law degrees unless TWU changed its policy by excluding law students from the Community Covenant, which the NSBS saw as discriminatory - The NSBS decision not to approve "the proposed law school", even though the proposed TWU law degree was approved by the national Federation of Law Societies, was contrary to the Regulations under the Legal Professions Act existing at that time - Accordingly, the Regulations were amended to permit the NSBS to not recognize a "law degree" recognized by the Federation where NSBS determined, in the public interest, that the university discriminated against law students contrary to the Charter or the Nova Scotia Human Rights Act - The Nova Scotia Supreme Court, applying the reasonableness standard of review, allowed TWU's judicial review application - The NSBS had no authority under the Legal Professions Act to regulate university or law school policies - The Act gave the NSBS jurisdiction to deal with the educational and other qualifications of persons who applied to practice law in Nova Scotia (i.e., regulating the competence of Nova Scotia lawyers) - The Community Covenant, however morally reprehensible to some, was irrelevant to whether a TWU law graduate met the qualifications to practice law in Nova Scotia - Alternatively, if the NSBS had the authority to not recognize TWU law degrees because of the Community Covenant, the decision would be set aside because the NSBS did not reasonably consider the implications of its actions on the Charter protected freedom of religion of the TWU and its students in a way that was consistent with Canadian legal values of inclusiveness, pluralism and respect for the rule of law (no rational connection or minimal impairment) - See paragraphs 166 to 275.

Barristers and Solicitors - Topic 492

Admission to practice or as student-at-law - Judicial review or appeals - Standard of review - Trinity Western University (TWU) was a private Christian university with a proposed law school - All students were required to sign the TWU Community Covenant promising to adhere to a code of conduct in line with evangelical teachings, including a promise not to engage in sexual intimacy outside the traditionally defined marriage of a man and a woman - The Nova Scotia Barristers' Society (NSBS) voted not to recognize proposed TWU law degrees unless TWU changed its policy on student conduct, which the NSBS saw as discriminating against gay, lesbian, bi-sexual and transgendered students - The NSBS decision not to approve "the proposed law school", even though the proposed TWU law degree was approved by the national Federation of Law Societies, was contrary to the existing Regulations under the Legal Professions Act - Accordingly, the Regulations were amended to permit the NSBS to not recognize a "law degree" recognized by the Federation where the university's policies were discriminatory - TWU applied for judicial review - The Nova Scotia Supreme Court stated that the standard of review of the NSBS decision that it had authority under the Act to refuse to recognize the TWU law degree on the ground that it was not in the public interest to do so, given its belief that the TWU Community Covenant was discriminatory, was reasonableness - Assuming that the NSBS had such authority, whether the decision properly balanced Charter values of freedom of religion and equality was also subject to the reasonableness standard of review - See paragraphs 155 to 165.

Barristers and Solicitors - Topic 7656

Regulation - Powers of governing bodies - Judicial review of (incl. standard of review) - [See Barristers and Solicitors - Topic 492 ].

Civil Rights - Topic 303

Freedom of conscience and religion - General - Scope of right - [See first Civil Rights - Topic 385 ].

Civil Rights - Topic 385

Freedom of conscience and religion - Infringement of - Schools - Religious education (incl. codes of conduct) - Trinity Western University (TWU) was a private Christian university with a proposed law school - All students were required to sign the TWU Community Covenant promising to adhere to a code of conduct in line with evangelical teachings, including a promise not to engage in sexual intimacy outside the traditionally defined marriage of a man and a woman - The Nova Scotia Barristers' Society (NSBS) voted not to recognize proposed TWU law degrees unless TWU changed its policy by excluding law students from the Community Covenant, which the NSBS saw as discriminating against gays, lesbians, bi-sexuals and transgendered persons - The Nova Scotia Supreme Court allowed TWU's judicial review application - The court stated that "People have the right to attend a private religious university that imposes a religiously based code of conduct. That is the case even if the effect of that code is to exclude others or offend others who will not or cannot comply with the code of conduct. Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith. There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society. Requiring a person to give up that right in order to get his or her professional education recognized is an infringement of religious freedom. Private religious schools are not limited to training members of the clergy, theologians, missionaries or those who want professional degrees but do not want to practise. Those institutions already do produce nurses and teachers and grant any number of academic degrees that are widely accepted." - See paragraph 11.

Civil Rights - Topic 385

Freedom of conscience and religion - Infringement of - Schools - Religious education (incl. codes of conduct) - [See Barristers and Solicitors - Topic 345 ].

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - The Nova Scotia Supreme Court stated that "The Charter is not a blueprint for moral conformity. Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgments of others." - See paragraph 10.

Education - Topic 4125

Universities - Courses or programs - Approval of - Considerations - [See Barristers and Solicitors - Topic 345 ].

Cases Noticed:

R. v. N.S. et al. (2012), 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. 20, footnote 3].

Multani v. Commission scolaire Marguerite-Bourgeoys et al. (2006), 345 N.R. 201; 2006 SCC 6, refd to. [para. 20, footnote 4].

Hutterian Brethren of Wilson Colony et al. v. Alberta (2009), 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 20, footnote 5].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 20, footnote 6].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 27, footnote 8].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 131, footnote 47].

Egg Films Inc. v. Labour Board (N.S.) et al. (2014), 343 N.S.R.(2d) 204; 1084 A.P.R. 204; 2014 NSCA 33, refd to. [para. 132, footnote 48].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 134, footnote 51].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 135, footnote 52].

Trinity Western University et al. v. College of Teachers (B.C.) et al. (2001), 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161; 2001 SCC 31, refd to. [para. 137, footnote 56].

Cartaway Resources Corp. et al., Re, [2004] 1 S.C.R. 672; 319 N.R. 1; 195 B.C.A.C. 161; 319 W.A.C. 161, refd to. [para. 140, footnote 59].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 140, footnote 60].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81, refd to. [para. 141, footnote 61].

Sobeys West Inc. et al. v. College of Pharmacists (B.C.), [2014] B.C.T.C. Uned. 1414; 2014 BCSC 1414, refd to. [para. 143, footnote 62].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 146, footnote 64].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 146, footnote 64].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 2012 SCC 12, refd to. [para. 147, footnote 66].

Catalyst Paper Corp. v. North Cowichan (District) (2012), 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 163, footnote 74].

Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al. (2013), 451 N.R. 80; 312 O.A.C. 169; 2013 SCC 64, refd to. [para. 177, footnote 77].

Katz Group Canada Inc. v. Ontario (Minister of Health and Long-Term Care) - see Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al.

Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 177, footnote 79].

Thorne's Hardware Ltd. et al. v. The Queen et al. - see Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board.

S.L. et al. v. Commission scolaire des Chênes et al., [2012] 1 S.C.R. 235; 426 N.R. 352; 2012 SCC 7, refd to. [para. 198, footnote 90].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2013), 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 201, footnote 96].

Owens v. Human Rights Commission (Sask.) et al. (2002), 228 Sask.R. 148; 2002 SKQB 506, revd. (2006), 279 Sask.R. 161; 372 W.A.C. 161; 2006 SKCA 41, refd to. [para. 205, footnote 101].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, appld. [para. 127, footnote 110].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1, refd to. [para. 217, footnote 111].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 219, footnote 114].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 219, footnote 115].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 223, footnote 117].

Authors and Works Noticed:

Beaman, Lori, Reasonable Accommodation: Managing Diversity (2012), generally [para. 21, footnote 7].

Brown, Wendy, Regulating Aversion: Tolerance in the Age of Identity and Empire (2006), p. 27 [para. 21, footnote 7].

Compte-Sponville, Andre, A Small Treatise on the Great Virtues (1996), p. 170 [para. 21, footnote 7].

Gillespie, Michael Allen, The Theological Origins of Modernity (2009), p. 284 [para. 83, footnote 29].

Haidt, Jonathan, The Righteous Mind: Why Good People are Divided by Policitcs and Religion (2012), generally [para. 274, footnote 127].

McLachlin, B., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion and Public Policy (2004), generally [para. 211, footnote 104].

Minow, Martha, Putting Up and Putting Down: Tolerance Reconsidered (1990), 28 Osgoode Hall L.J. 409, generally [para. 21, footnote 7].

Moon, Richard, Government Support for Religious Practice, in Law and Religious Pluralism in Canada (2008), p. 217 [para. 198, footnote 92].

Popper, Karl, The Open Society and Its Enemies (1966), vol. 1, p. 265 [para. 21, footnote 7].

Taylor, Charles, A Secular Age (2007), generally [para. 19, footnote 2].

Taylor, Charles, Dilemmas and Connections: Selected Essays (2011), p. 306 [para. 19, footnote 2].

Woodsworth, J.S., Strangers Within Our Gates (1909), generally [para. 83, footnote 29].

Counsel:

Brian Casey, Q.C., for the applicant;

Marjorie A. Hickey, Q.C., Peter Rogers, Q.C. and Jane O'Neil, for the Nova Scotia Barristers' Society;

John Carpay, for the Justice Centre for Constitutional Freedoms;

André Marshall Schutten, for the Association for Reformed Political Action;

Albertos Polizogopoulos and Kristin Debs, for the Evangelical Fellowship of Canada and Christian Higher Education Canada;

Jessica Harris, for the Attorney General of Canada;

Philip H. Horgan, for the Catholic Civil Rights League and Faith and Freedom Alliance;

David St. C. Bond, for the Christian Legal Fellowship;

Barry W. Bussey, for the Canadian Council of Christian Churches;

Lisa Teryl, for the Nova Scotia Human Rights Commission.

This application was heard on December 16-19, 2014, at Halifax, N.S., before Campbell, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 28, 2015.